Appeal No. 2000-1665
Application 08/752,529
accordingly, that the subject matter set forth in claims 1, 2,
4 through 8, 12 through 17, 19 through 32 and 35 would not
have been obvious to one of ordinary skill in the art within
the meaning of 35 U.S.C. § 103 at the time appellant's
invention was made. Our reasoning for these determinations
follows.
Looking first to the examiner's seven rejections based on
provisional obviousness-type double patenting, we note that
appellant (brief, pages 2-3) has erroneously characterized
these rejections as being “moot at this time,” because the
claims of Application No. 08/940,859 were not yet allowed.
Accordingly, appellant has merely urged that these rejections
“will be dealt with in whichever of the applications is
appropriate in due course.” In response, the examiner has
remained silent in the answer and has not challenged appellant
in any way on this characterization of the double patenting
rejections. Unfortunately, the problem has arisen that
Application No. 08/940,859 was issued as U.S. Patent No.
6,145,231 on Nov. 14, 2000. Thus, one or more of the
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